There is an unfolding scandal involving one of the best known gamblers in the world, Phillip Ivey, Jr. who has been accused of card-cheating in baccarat to the tune of $9.6 million. What is striking to me is how such allegations are treated as civil rather than criminal matters, particularly given the allegations by Borgata Hotel Casino & Spa filed in its federal lawsuit against Ivey in using effectively marked cards. The casino reads like a new script for Ocean’s Thirteen with the use of flawed dice created at a Mexican factory. I could find no reference to the lawsuit (or another lawsuit by the Golden Nugget) on Ivey’s website.
Borgata alleges that Ivey used a defect in cards made by Kansas City card manufacturer, Gemaco Inc., that allowed him to engineer good cards to be dealt in a way to predictably win at baccarat. (Gemaco Inc. is also being sued, including a lawsuit by the Golden Nugget that alleges that the company provided unshuffled cards that allowed gamblers to beat the casino for $1.5 million) The casino details four games in April and October 2012 and what it alleges was “edge sorting” in violation of casino rules and gambling regulations. This was allegedly done by using a defect in the pattern on the back of the cards. The cards have rows of small white circles that are meant to look like the tops of cut diamonds, but some of them allegedly were only a half diamond or a quarter of one.
The complaint is an insight into card cheating. It claims that Ivey and an associate told the instructor to flip the cards in a particular way depending on whether the card was desirable or undesirable. The former are cards numbered 6-9. This allowed the good cards to be arranged in a way that allegedly allowed the irregular side to be facing in a specific direction when they came out of the chute. In addition the casino says that Ivey insisted on an automatic shuffling machine so that the alignment would not change.
What I find fascinating is that a person can allegedly cheat at cards to secure millions but it is not considered a crime. If you steal chips from a table, you are criminally charged. However, Ivey is accused of violation gambling rules and regulations to secure a windfall of ill-gotten gains. While some would say that he was merely exploiting cards dealt by the casino like any good gambler, gambling regulations do not view such techniques in that way. New Jersey has a typical provision:
5:12-113. Swindling and cheating; penalties.
113. Swindling and Cheating; Penalties.
a. A person is guilty of swindling and cheating if the person purposely or knowingly by any trick or sleight of hand performance or by a fraud or fraudulent scheme, cards, dice or device, for himself or herself or for another, wins or attempts to win money or property or a representative of either or reduces a losing wager or attempts to reduce a losing wager in connection to casino gaming.
b. Consolidation of offenses. Conduct denominated swindling and cheating in this section constitutes a single offense, but each episode or transaction may be the subject of a separate prosecution and conviction. A charge of swindling and cheating may be supported by evidence that it was committed in any manner that would be swindling and cheating under this section, notwithstanding the specification of a different manner in the indictment or accusation, subject only to the power of the court to ensure a fair trial by granting a bill of particulars, discovery, continuance, or other appropriate relief when the conduct of the defense would be prejudiced by a lack of fair notice or by surprise.
c. Grading of swindling and cheating offenses.
(1) Swindling and cheating constitutes a crime of the second degree if the amount involved is $75,000 or more.
(2) Swindling and cheating constitutes a crime of the third degree if the amount involved exceeds $500.
(3) Swindling and cheating constitutes a crime of the fourth degree if the amount involved is at least $200 but not more than $500.
(4) Swindling and cheating constitutes a disorderly persons offense if the amount involved is less than $200.
(5) The amount involved in swindling and cheating shall be determined by the trier of fact. Amounts involved in acts of swindling and cheating committed pursuant to one scheme or course of conduct, whether from the same person or several persons, may be aggregated in determining the grade of the offense.
This is why I find it so odd not to see any criminal or regulatory charges if these allegations have merit. It apparently is not considered a form of fraud or con game if the alleged victim is a casino. Perhaps one of our gamblers can enlighten us.
Borgata is suiting the lawsuit but failed to properly allege details in the complaint as noted by U.S. District Court Judge Noel Hillman. They have until April 24, 2014 to correct the errors.